United States District Court, N.D. California
PENNY L. PATINO, Plaintiff,
SELECT PORTFOLIO SERVICING, INC.,, Defendants.
ORDER GRANTING MOTION TO DISMISS, WITH LEAVE TO
AMEND, AND DENYING MOTION FOR DEFAULT JUDGMENT
RICHARD SEEBORG, UNITED STATES DISTRICT JUDGE.
Penny L. Patino, appearing in pro se, brings this
action against various entities that apparently are involved
in efforts to foreclose on properties owned by Patino.
Pursuant to Civil Rule 7-1(b), defendants' motions to
dismiss have been submitted without oral argument, as has a
motion brought by Patino seeking entry of default judgment
against defendant Clear Recon Corp.
motions to dismiss are granted. As a threshold matter, Patino
has not alleged a basis for jurisdiction in federal court.
Although aspects of her pleading are unclear, the complaint
quite explicitly only advances claims under state
The first “cause of action” alleges a violation
of California Civil Code §2923.55. The second
“cause of action” asserts defendants failed to
comply with California Civil Code
§2924(a)(6). The third cause of action merely requests
declaratory relief, based on the preceding claims. None of
these allegations or legal theories, even if otherwise
adequately pleaded, would arise under federal law.
Furthermore, the complaint neither asserts diversity
jurisdiction nor pleads any factual basis for such
jurisdiction. Accordingly, the complaint must be dismissed
for lack of federal jurisdiction.
the court cannot reach the merits of the claims in the
absence of grounds for jurisdiction, Patino is advised that
the complaint is insufficient to state a claim in any event.
Rule 8 of the Federal Rules of Civil Procedure provides that
to state a claim, a pleading must contain, among other
things, “a short and plain statement of the claim
showing that the pleader is entitled to relief.” The
first part of this requirement-“a short and plain
statement of the claim” - cannot be read without
reference to the second part -“showing that
the pleader is entitled to relief.” The Supreme Court
has made clear that while “showing” an
entitlement to relief does not require “detailed
factual allegations, ” it does “demand more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)). Thus, “[a] pleading that
offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action
will not do.' . . . . Nor does a complaint suffice if it
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'” Id.
Here, while the complaint contains invective directed at
defendants and conclusory assertions that certain Notices of
Default are “void, ” it does not contain
allegations of fact sufficient to show that Patino would be
entitled to relief, even if there were a basis for federal
light of Patino's status as a pro se litigant,
she will be given an opportunity to amend her complaint, in
the event she has a good faith basis to assert federal
jurisdiction. In the event Patino lacks a basis for federal
jurisdiction, as seems likely, this dismissal is without
prejudice to her ability to refile in state court.
Accordingly, no later than September 22, 2017, Patino shall
either file an amended complaint or shall file a request for
dismissal of the action, so that she may pursue any claims in
request for a default judgment to be entered against
defendant Clear Recon Corp is denied. In the absence of a
basis for federal jurisdiction, no such judgment would be
appropriate in any event. Even if that were not so, however,
the Clerk of Court properly rejected Patino's request for
entry of default against Clear Recon. Clear Recon filed a
responsive pleading in this action. See Docket No. 31
(“Defendant Clear Recon Corp's Declaration of
Non-Monetary Status). There are not grounds for entry of
default, much less default judgment.
Case Management Conference is hereby continued to November 9,
2017, at 10:00 a.m.
IS SO ORDERED
 Counsel appearing on Patino's
behalf previously filed a First Amended Complaint. When that
counsel moved to withdraw, and Patino disavowed the First
Amended Complaint, it was ordered stricken. Accordingly, the
operative pleading is the original complaint filed by Patino
in pro se.
 The complaint gives only the section
number. That the reference is intended to be to the
California Civil Code is clear from context.
 The complaint omits the reference to
“(a), ” as well as to the name of the code.
Again, the intent is plain from context.
 The declaration asserts it is filed
pursuant to California Civil Code §29241. The Court
expresses no opinion as to whether defendants may properly
avail themselves of that California procedural device in
federal court, although it plainly serves salutary purposes.
Whether or not a defendant could be compelled to provide some
other kind of ...